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2nd Circuit: CFPB funding is constitutional
On March 23, the U.S. Court of Appeals for the Second Circuit held that the CFPB’s funding structure is constitutional—splitting from the U.S. Court of Appeals for the Fifth Circuit’s decision in Community Financial Services Association of America v. Consumer Financial Protection Bureau, which concluded that Congress violated the Constitution’s Appropriations Clause when it created what that Court described as a “perpetual self-directed, double-insulated funding structure.” The U.S. Supreme Court is scheduled to review the 5th Circuit’s decision next term (covered by InfoBytes here).
Meanwhile, the 2nd Circuit concluded that it “cannot find any support” for the 5th Circuit’s determination in Supreme Court precedent, the text of the Constitution text, or in the history of the Appropriations Clause. “Because the CFPB’s funding structure was authorized by Congress and bound by specific statutory provisions, we find that the CFPB’s funding structure does not offend the Appropriations Clause,” the 2nd Circuit wrote. As such, the appellate court affirmed a 2020 district court order requiring the defendant debt collection law office to comply with a civil investigative demand issued by the Bureau in June 2017. As previously covered by InfoBytes, the CID requested information from the defendant as part of a Bureau investigation into whether debt collectors, furnishers, or other persons associated with the collection of debt and furnishing of information have engaged or are engaging in unfair, deceptive, or abusive acts or practices in violation of the CFPA, FDCPA, and FCRA. The defendant objected on several grounds, including that the CID was void ab initio under Seila Law LLC v. CFPB (the defendant contended that “the CFPB Director was shielded from presidential oversight by an unconstitutional removal provision at the time the CID was issued”), and that the Bureau is unconstitutionally funded. As noted in the opinion, the Bureau ratified the CID and the enforcement action against the defendant following the Supreme Court’s decision in Seila Law, and the district court ultimately granted the Bureau’s petition to enforce the CID.
On review, the 2nd Circuit affirmed the district court’s order, concluding that the CID was not void ab initio because “there is no dispute that the CFPB Director who issued the CID was properly appointed.” The appellate court pointed to the majority opinion in the Supreme Court’s decision in Collins v. Yellen (covered by InfoBytes here), which held that “‘an unconstitutional removal restriction does not invalidate agency action so long as the agency head was properly appointed[,]’” and therefore the Bureau’s actions are not void and do not need to be ratified, unless a plaintiff can show that “the agency action would not have been taken but for the President’s inability to remove the agency head.” The panel further noted that “[s]ince the CID was issued, there have been three different CFPB Directors appointed by two different presidents, each of whom has been subject to at-will removal at some point in their tenure. There is nothing to suggest that the Director’s removal protection affected the issuance of the CID or the investigation into [the defendant].” The 2nd Circuit further concluded that “the CFPB’s funding structure is not constitutionally infirm under either the Appropriations Clause or the nondelegation doctrine, and that the CID served on [the defendant] is not an unduly burdensome administrative subpoena.”
Supreme Court agrees to review constitutionality of CFPB’s funding, but not on an expedited basis
The Supreme Court granted the CFPB's request to review the U.S. Court of Appeals for the Fifth Circuit’s decision in Community Financial Services Association of America v. Consumer Financial Protection Bureau but so far has not expedited consideration of the case. Without quick action to expediate consideration by the Court, all CFPB actions will be open to challenge until the Supreme Court issues a decision. At the current pace, the CFPB could remain in this limbo until June of 2024.
In this case, the 5th Circuit held that Congress violated the Constitution’s Appropriations Clause when it created what that Court described as a “perpetual self-directed, double-insulated funding structure” for the agency. As a result, the CFPB’s 2017 Payday Lending Rule is invalid because the CFPB would not have been able to issue it “without its unconstitutional funding.” The implication, as the CFPB itself pointed out in its petition for certiorari, is that all past and future actions that relied on the same funding mechanism—basically everything the agency has ever done or will ever do—are invalid as well.
Although the CFPB had ninety days to seek review of the 5th Circuit’s decision, it took the unusual step of filing the petition in less than 30 days, and specifically urged the Supreme Court to “set this case for argument this Term,” to guarantee a decision by June or early July of this year. The Court’s order issued Monday simply states that the CFPB’s petition is granted, without setting an expediated briefing schedule. As a result, without the Court taking some immediate steps to speed up consideration, the case will be decided under the Court’s standard briefing schedule. This means the matter will be briefed over the next several months with oral argument likely next fall, as part of the Supreme Court’s October 2023 Term. Although a decision could come out any time after oral argument, cases as significant as this case often come out towards the end of the term, i.e., by June 2024.
The Supreme Court’s unwillingness to expedite consideration of the case to date has serious practical implications for the CFPB’s ability to push forward its ambitious agenda. As the CFPB has itself acknowledged, the 5th Circuit’s decision binds lower courts in that circuit unless and until it is overturned. It will likely encourage challenges to CFPB rulemakings and potentially other actions in that circuit. Even outside of the 5th Circuit, lower courts adjudicating CFPB enforcement actions may be unwilling to move those cases forward until the Supreme Court provides direction on this fundamental funding issue. Thus, for the time being, we can expect more challenges and more delays in CFPB enforcement actions.
For financial institutions, our advice remains the same as when the 5th Circuit’s decision was issued. Generally, companies should maintain their day-to-day focus on compliance, as the CFPB may weather this latest constitutional challenge with its full authority, including its enforcement power, intact. In addition, other Federal agencies—for example, the Federal banking agencies, the National Credit Union Administration, the Federal Trade Commission—and state attorneys general and/or state regulators often have overlapping authority to enforce Federal consumer financial law. Finally, companies should continue to assume that rules issued by the Bureau are valid and that they will not be penalized for good-faith reliance on such rules.
Supreme Court “relist” of CFPB petition for certiorari threatens prolonged legal limbo
The Supreme Court recently had the opportunity to grant the CFPB’s pending petition for certiorari seeking review of the U.S. Court of Appeals for the Fifth Circuit’s holding in Community Financial Services Association of America v. Consumer Financial Protection Bureau. The 5th Circuit found that the agency’s funding structure is unconstitutional, potentially voiding everything the CFPB has done or could do. The Justices considered the petition at their conference this past Friday, but the Court neither granted nor denied the petition. Instead, it “relisted” the petition for consideration at its conference this Friday, February 24.
The Court’s decision functions as a delay and does not necessarily suggest an ultimate denial of the petition. In recent practice, petitions have been relisted before being granted. Practically, this action makes it less likely that the case will be decided this term, leaving the agency, and the rules it issues, in a state of legal limbo for as much as another year or more. The possibility that the case will not be decided during this Supreme Court term may leave the CFPB’s actions subject to successful challenges in federal district courts in states subject to the 5th Circuit decision (Texas, Mississippi and Louisiana).
The CFPB was no doubt hoping to avoid this possible outcome. It filed the petition less than 30 days after the 5th Circuit’s decision and urged the Court to act quickly to decide the case during the current term, which typically ends in late June. In the petition the CFPB explained that the 5th Circuit’s decision would negatively impact the “CFPB’s critical work administering and enforcing consumer financial protection laws … because the decision below vacates a past agency action based on the purported Appropriations Clause violation, the decision threatens the validity of all past CFPB actions as well.” The CFPB argued that refusal to decide the case this term “threatens the ability of the CFPB to function and risks severe market disruption. Delaying review until next term would likely postpone resolution of the critical issues at stake until sometime in late 2023 and more likely 2024.”
The CFPB’s timeline was complicated by the Court’s agreement to extend the briefing schedule on the petition, in part to accommodate briefing on the Community Financial Services Association of America’s conditional cross-petition, which seeks review on other aspects of the 5th Circuit’s decision. The Court’s delay in acting on the CFPB’s petition complicates matters further. It is still possible that the Court could agree to hear the case and set it for expedited briefing so that it can be decided this term, but every indication so far is that the Court is in no hurry to decide this matter, even if it complicates life for the CFPB. Stay tuned. We may get action on the petition by the Court either Friday or next Monday.
Find continuing InfoBytes coverage here.
CFSA Releases Positive Payday Loan Testimonials Submitted to the CFPB
On September 6, the Community Financial Services Association of America (CFSA) released a 2,000-plus page document containing testimonials submitted to the CFPB regarding consumers’ positive experiences with the payday loan industry. A CFSA representative uncovered the allegedly “buried” stories through a Freedom of Information Act (FOIA) request filed December 31, 2015. According to the CFSA, of the newly discovered 12,546 consumer comments regarding to the payday loan industry, 12,308 “praised the industry and its products and services, or otherwise indicated positive experiences.” Among other things, the CFSA further noted that (i) since the CFPB implemented its consumer complaint portal in 2011, approximately 1.5% of all complaints received related to the payday loan industry; (ii) in an FTC 2015 summary of consumer complaints, the “FTC found that just 0.003% of more than three million complaints related to payday lending”; and (iii) at least two customer surveys reveal that payday loan borrowers are overwhelmingly satisfied with the product. Regarding the CFPB’s proposed rules to address the short-term lending industry, CFSA CEO Dennis Shaul commented, “[i]t is clear that millions of consumers are satisfied with the payday loan product and services, and do not want the federal government to take this valued credit option away from them.”
Nevada Enacts Payday Lender Best Practices Act
On May 27, Nevada Governor Brian Sandoval signed into law S.B. 242, enacting the Payday Lender Best Practices Act. The legislation requires payday and similar lenders to use various specified best practices – advocated by the Community Financial Services Association of America – to strengthen consumer protections and promote responsible lending. The Act applies to any lender licensed within the state who operates a deferred deposit loan service, high-interest loan service, or title loan service. In addition to requiring lenders to fully comply with federal TILA disclosure requirements, the Act mandates lenders must also, among other things, (i) disclose to and provide borrowers with the option to enter into a repayment plan if the borrower is unable to pay; (ii) include a notice on marketing materials and advertisements advising borrowers that the loan should be used for short-term financial needs, and that borrowers with credit impairments should seek credit counseling; and (iii) report violations of Nevada’s short-term loan law to the state’s Financial Institutions Division.